28329 La.App. 2 Cir. 5/8/96, Killough v. Bituminous Cas. Corp.
| Decision Date | 08 May 1996 |
| Citation | 674 So.2d 1091 |
| Parties | Cir |
| Court | Court of Appeal of Louisiana — District of US |
Lunn, Irion, Johnson, Salley & Carlisle by Frank M. Walker, Jr., Shreveport for Appellants.
Norman R. Gordon and Associates by W. Orie Hunter, III, Shreveport for Appellees.
Before MARVIN, GASKINS and CARAWAY, JJ.
[28329 La.App. 2 Cir. 1] GASKINS, Judge.
This appeal arises from injuries sustained by a nine-year-old boy when his right leg and foot became trapped in a pumping unit at an oil well. His injuries required several operations, including skin grafts and amputation of one-third of his right foot. The trial court rendered judgment in favor of the plaintiff and against the oil well operators. The defendants appeal the trial court's ruling on liability. The plaintiff answered the appeal, contending that the trial court awarded inadequate damages. For the reasons set forth below, we increase the total amount of damages from $249,933.92 to $262,208.92, but we assess comparative fault of 10% to the injured child. Therefore, the judgment in favor of plaintiff is amended to $216,790.18. We also affirm the award of $19,197.84 to the intervenor.
On June 5, 1993, two days before his tenth birthday, Bryan Ringer was picking blackberries in the vicinity of the D.S. Owens Roth No. 2 well in Hosston, Louisiana. Bryan, his mother, his older brother, and his stepfather were visiting at the home of the stepfather's grandmother (hereinafter "the great-grandmother"). The well site was located about 129 feet from the great-grandmother's residence and 500 feet from a school and playground. The evidence demonstrates that Roth No. 2 was a stripper well which was constantly in motion. Somehow, Bryan's right leg and foot were crushed by a mechanical mechanism of the oil well pump. There were no witnesses to the incident. Bryan denied playing on the pumping unit and insisted that he had been picking berries when he slipped in oil on the ground.
Bryan was initially treated at North Caddo Memorial Hospital in Vivian, then transported by helicopter to the LSU Medical Center (LSUMC) in Shreveport. He was hospitalized at LSUMC for 24 days, during which time he underwent [28329 La.App. 2 Cir. 2] seven surgical procedures, which included several debridements of the wounds, skin grafts, and a transmetatarsal amputation of the right forefoot.
Bryan's mother, Donna Killough, filed suit individually and on Bryan's behalf. Named as defendants were the owners of the oil and mineral lease and the well equipment, Gary and Pamela Byargeon, d/b/a Byargeon & Sons Oil Company, and their insurer, Bituminous Casualty Corporation. The State of Louisiana, through the Department of Health and Hospitals, for the Medicaid Program, (hereinafter "intervenor") intervened seeking $19,197.84 for medical assistance payments made on behalf of Bryan.
Bench trial was held February 21, 22, 23, March 15, and April 6, 1995. The trial judge also made an on-site inspection of the accident site. In rendering judgment in favor of the plaintiff, the trial court found that the child was injured by the well pump in question. The court further found that the well site was open to the public without adequate warnings, safety barriers, or fences, and that such condition rendered it unreasonably dangerous. However, the trial judge stated his belief that the child was not entirely honest in his account of how the injury occurred and that the child was actually playing on the pump well when he was injured. Nonetheless, the trial court ruled that, based upon the totality of the evidence, the child was picking berries near the oil well "when he happened upon the well pump and perhaps in fact slipped."
In assessing damages, the trial judge further noted that he was not overly impressed with the health care plan established by the plaintiff's experts. The trial court awarded to the plaintiff damages of $230,736.08, subject to any applicable medical bill liens, plus legal interest from date of judicial demand; this sum [28329 La.App. 2 Cir. 3] included $155,000 for general damages. 1 The court also awarded judgment in favor of the intervenor in the amount of $19,197.84, plus legal interest from the date of judicial demand.
The defendants appeal the liability ruling. The plaintiff answered the appeal, contending that the damages awarded by the trial court are inadequate.
It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989). The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Rosell, supra.
[28329 La.App. 2 Cir. 4] When findings are based on determinations regarding the credibility of witnesses, the manifest error/clearly wrong standard demands great deference to the trier of fact's findings. Only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell, supra. Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell, supra.
The defendants contend that the trial court erred in finding that Bryan was injured at the Roth No. 2 well instead of another well which was located closer to his great-grandmother's house. Bryan, his mother, his stepfather, and the stepfather's father all testified that Bryan was injured at the Roth No. 2 well. The stepfather further testified that there was blood and berries on the ground where he found the injured child. However, an employee of the Byargeons testified that he was sent by Mrs. Byargeon to the Roth No. 2 well within a few hours of the incident in response to information she received of a possible accident at that well site. He testified that he found no evidence that anyone had been near the Roth No. 2 well. He specifically found no blood or berries. Mr. and Mrs. Byargeon went to the site the next morning with that same employee. They testified that they saw no blood, berries or disturbed vegetation near their well.
[28329 La.App. 2 Cir. 5] In determining where Bryan was injured, the trial court made a credibility call in favor of the plaintiff's witnesses. On the record before us, we are unable to find that the trial court committed manifest error on this issue.
In its oral reasons for judgment, the trial court found that the oil well site was open to the public without adequate warnings, safety barriers, or fencing. The court considered the local history of no accidents, the custom of the area of not fencing off such sites, and the costs associated with constructing safety barriers such as fences. Nonetheless, it found that a well pump like the Roth No. 2 was dangerous and hazardous, and that its owners were answerable for failing in their duty to make and maintain adequate safeguards to protect minors from injuries.
The defendants argue that the trial court erred in finding that they were at fault in maintaining the Roth No. 2 well. In oral argument, defense counsel conceded that wells such as the Roth No. 2 are dangerous. At issue is whether Roth No. 2 was unreasonably dangerous.
Under a theory of either negligence or strict liability, the plaintiff has the burden of proving the following: (1) that the defendants had custody of the property causing the damage; (2) that the property was defective because it had a condition that created an unreasonable risk of harm; and (3) that the defect was the cause in fact of the injury. Barnes v. New Hampshire Insurance Company, 573 So.2d 628 (La.App. 2d Cir.1991); Manchack v. Willamette Industries, Inc., 621 So.2d 649 (La.App. 2d Cir.1993), writ denied, 629 So.2d 1170 (La.1993). Under a negligence theory, the plaintiff must also prove that the owner or custodian knew or should have known of the unreasonable risk of harm posed by the property. Barnes, supra; Manchack, supra.
[28329 La.App. 2 Cir. 6] To determine whether a particular risk is unreasonable, the intended benefit of the thing must be balanced with its potential for harm and the cost of prevention. Socorro v. City of New Orleans, 579 So.2d 931 (La.1991). The burden is on the plaintiff to prove that the thing is defective, i.e., that it poses an unreasonable risk of harm. Manchack, supra.
Evidence of the absence of other accidents at the same place is relevant and admissible as tending to show that the place was not dangerous and that the defendant did not have actual or constructive knowledge of a...
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